United States v. Reinecke

30 M.J. 1010, 1990 CMR LEXIS 615, 1990 WL 81573
CourtU S Air Force Court of Military Review
DecidedMay 14, 1990
DocketMisc. Dkt. No. 90A-03
StatusPublished
Cited by10 cases

This text of 30 M.J. 1010 (United States v. Reinecke) is published on Counsel Stack Legal Research, covering U S Air Force Court of Military Review primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Reinecke, 30 M.J. 1010, 1990 CMR LEXIS 615, 1990 WL 81573 (usafctmilrev 1990).

Opinion

DECISION

LEONARD, Senior Judge:

The government has appealed the military judge’s rulings that the seizure of a urine specimen from Airman First Class Strozier was without probable cause and not covered by the good faith exception, that the handling of the urine specimen substantially violated Air Force regulations, and that the evidence derived from the urine specimen must be suppressed. We find that the military judge erred and overrule his suppression of Strozier’s cocaine positive urinalysis.

Strozier was apprehended at Fort Lewis, Washington, on 25 September 1989, at 2129, for drunk and disorderly conduct. A computer check by the military police showed that Strozier was listed as absent without leave from the Air Force. The security police at McChord Air Force Base, Washington, were called and, at 2250, Strozier was released to their custody and they took him back to the base. Strozier was intoxicated and very uncooperative. Upon arriving at McChord, he was placed in a detention cell at the security police building.

Being concerned about Strozier’s uncooperative and irrational behavior, the security police called the McChord Clinic to request a medical evaluation. The clinic sent two Emergency Medical Technicians (EMT), Staff Sergeant Eudy and Staff Sergeant Bush, to make a clinical assessment of Strozier’s need for medical treatment. Eudy and Bush stayed with Strozier for approximately two hours attempting to keep him calm and examining him. They determined that Strozier’s vital signs were normal with the exception of his pupils which were fixed and did not respond to light. Their experience and training as EMTs told them that when a person’s pupils fail to react to light the cause is usually a brain injury or consumption of narcotics. Their examination of Strozier failed to find any head trauma that would support the theory of a brain injury. They also noted that during their period of observation, Strozier exhibited irrational behavior by hitting his head against the wall, continually rocking back and forth, ripping his shirt and attempting to choke himself with the draw string from his pants. Finally, they observed Strozier undergo a personality change and become increasingly paranoid.

Sergeant Lund, a security police investigator, was also present when the EMTs were making their examination and clinical assessment. All three o individuals conferred and came to the conclusion, based on their training and experience, that Strozier’s fixed pupils and irrational, paranoid behavior could not be explained solely by alcohol intoxication. They agreed that it appeared that Strozier was under the influence of some narcotic. During the examination by the military judge, Eudy admitted that he was not certain Strozier had taken an illegal drug and that some persons with extreme alcohol intoxication could exhibit some of the behavior they observed. He also stated that the conclusion of the EMTs was that it was “possible” that Strozier had used a narcotic.

While the EMTs and another security policemen transported Strozier to the Army hospital at Fort Lewis, Lund contacted Colonel McKinsey, the McChord Base Commander, to ask for authorization to seize urine and blood samples. The authorization was requested, at approximately 2400, in a three way telephone conversation involving Lund, McKinsey, and a judge advocate. Lund told McKinsey the circumstances of Strozier’s apprehension at Fort Lewis and his transportation back to McChord. He also stated that Strozier was extremely belligerent and uncooperative, and had a strong odor of alcoholic beverage, slurred speech, and trouble walking, but at the same time was “hyper” and irrational. He told the commander that two EMTs had examined Strozier and had expressed the [1013]*1013opinion that he was under the influence of a narcotic based on his behavior and the fact that his pupils were fixed.

Colonel McKinsey was a former security police officer and had over 22 years of experience in that career field. During the three way conversation, he extensively questioned Lund on Strozier’s behavior and the observations of Lund and the EMTs. Based on the information related to him and his own extensive experience with individuals intoxicated from alcohol and under the influence of illegal narcotics, he came to the conclusion that Strozier was probably under the influence of an illegal narcotic. In forming his conclusion, McKinsey considered the EMTs’ observations of irrational behavior, an euphoric state, and fixed pupils and their opinion that Strozier might be under the influence of an illegal narcotic. He also considered Lund’s observations that described some of the effects of alcohol, but also described a “hyper” or excited state and irrational and combative behavior that indicated the effects of a stimulant rather than alcohol. Further, based on his knowledge of how long evidence of illegal drug use remains in a person’s body, he believed that tests of Strozier’s blood and urine would still be able to identify the drug involved. Based on his conclusions, McKinsey determined that probable cause existed to seize blood and urine samples from Strozier and, with the concurrence of the on-call judge advocate, he ordered the seizure.

After the seizure was ordered, Office of Special Investigations (OSI) agents from McChord went to the Army hospital at Fort Lewis to obtain the samples. They took with them a 4¥2 oz screw top specimen container, commonly referred to as a wide mouth collection bottle, rather than the narrow mouth collection bottle that Air Force Regulation 160-23, Drug Abuse Testing Program, para. 7d(2)(b) (Feb 1989) provides to be used for collection of urine samples that are to be shipped to a drug testing lab. When they arrived, they found that Strozier had been given Valium to calm him and he was asleep. They gave the collection bottle to Staff Sergeant Hernandez, a security policeman who had been sent to guard Strozier and asked him to obtain the urine sample when Strozier regained consciousness.

When Strozier awoke, Hernandez observed him provide a urine sample in another bottle provided by a nurse and observed the nurse pour part of this sample into the bottle provided by the OSI. Hernandez screwed the lid on the bottle and placed a piece of tape over the top of it. The tape was not the tamper resistant tape that AFR 160-23, para. 7d(3) provides is to be placed over the top of urine sample bottles collected for shipment to a drug testing lab. Hernandez also completed an Air Force Form 52, Evidence Tag, describing the sample and showing that the sample was originally received by the nurse and transferred to him. Hernandez then kept the bottle under his constant observation and control until Special Agent Conoly arrived to take the bottle back to the McChord clinic.

Conoly sealed the bottle with evidence tape and put his signature and organization on the tape. He then receipted for the bottle on the Air Force Form 52 and took the bottle to the McChord clinic where it was released to Staff Sergeant Sullivan. Sullivan receipted for the bottle on the Form 52 and locked the bottle in a metal container. When the shift changed, the metal container was opened, Staff Sergeant Eudy receipted for the bottle, and the container was again locked. On both shifts, the only key to the locked container was kept in the possession of the person who had receipted for the bottle.

On the morning of 27 September 1989, Master Sergeant Cates, Superintendent of Laboratory Services for the McChord Clinic, receipted for the bottle, took it to the lab, and prepared it for shipment.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Callaway
Air Force Court of Criminal Appeals, 2014
United States v. Flesher
73 M.J. 303 (Court of Appeals for the Armed Forces, 2014)
United States v. Benton
54 M.J. 717 (Army Court of Criminal Appeals, 2001)
United States v. Henry
42 M.J. 593 (Army Court of Criminal Appeals, 1995)
United States v. Brooks
41 M.J. 792 (Army Court of Criminal Appeals, 1995)
United States v. Pacheco
36 M.J. 530 (U S Air Force Court of Military Review, 1992)
Evans v. Kilroy
33 M.J. 730 (U S Air Force Court of Military Review, 1991)
United States v. Strozier
31 M.J. 283 (United States Court of Military Appeals, 1990)
United States v. Reinecke
31 M.J. 507 (U S Air Force Court of Military Review, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
30 M.J. 1010, 1990 CMR LEXIS 615, 1990 WL 81573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-reinecke-usafctmilrev-1990.